THE end of war is to procure by force the justice which cannot otherwise
be obtained; and the law of nations allows the means requisite to the end. The
persons and property of the enemy may be attacked and captured, or destroyed,
when necessary to procure reparation or security. There is no limitation to the
career of violence and destruction, if we follow the earlier writers on this
subject, who have paid too much deference to the violent maxims and practices
of the ancients and the usages of the Gothic ages. They have considered a state
of war as a dissolution of all moral ties, and a license for every kind of
disorder and intemperate fierceness. An enemy was regarded as a criminal and an
outlaw, who had forfeited his rights, and whose life, liberty, and property lay
at the mercy of the conqueror. Everything done against an enemy was held to be
lawful. He might be destroyed, though unarmed and defenceless. Fraud might be
employed as well as force, and force without any regard to the means. (a) But
these barbarous rights of war have been questioned and checked in the progress
of civilization. Public opinion, as it becomes enlightened and refined,
condemns all cruelty, and all wanton destruction of life {90} and property, as
equally useless and injurious; and it controls the violence of war by the
energy and severity of its reproaches.

l. Moderation a duty.  Grotius, even in opposition to many
of his own authorities, and under a due sense of the obligations of religion
and humanity, placed bounds to the ravages of war, and mentioned [maintained?]
that many things were not fit and commendable, though they might be strictly
lawful; and that the law

of nature forbade what the law of nations (meaning thereby the practice
of nations) tolerated. He held that the law of nations prohibited the use of
poisoned arms, or the employment of assassins, or violence to women, or to the
dead, or making slaves of prisoners; (a) and the moderation which he inculcated
had a visible influence upon the sentiments and manners of Europe. Under the
sanction of his great authority men began to entertain more enlarged views of
national policy, and to consider a mild and temperate exercise of the rights of
war to be dictated by an enlightened self-interest as well as by the precepts
of Christianity. And notwithstanding some subsequent writers, as Bynkershoek
and Wolfius, restored war to all its horrors, by allowing the use of poison and
other illicit arms, yet such rules became abhorrent to the cultivated reason
and growing humanity of the Christian nations. Montesquieu insisted (b) that
the laws of war gave no other power over a captive than to keep him safely, and
that all unnecessary rigor was condemned by the reason and conscience of
mankind. Rutherforth (c) has spoken to the same effect, and Martens (d)
enumerates several modes of war and species of arms as being now held unlawful
by the laws of war. Vattel (e) has entered largely into the subject, and he
argues with great strength {91} of reason and eloquence against all unnecessary
cruelty, all base revenge, and all mean and perfidious warfare; and he
recommends his benevolent doctrines by the precepts of exalted ethics and sound
policy, and by illustrations drawn from some of the most pathetic and
illustrious examples. (x)

(i) The sentiment of the age condemns the employment of such instruments
or weapons as will cause a useless shedding of blood. It is now considered a
violation of right if weapons of war are turned against non-combatants or
unfortified cities or towns, or if a captured city is sacked or demolished; and
the bombardment of forts and other fortified places is regarded as a measure of
extreme rigor, justifiable only when it is impossible to secure a surrender

by other means. Wheaton says that usage, which has acquired the force of
law, excepts from the operations of war churches, public edifices exclusively
devoted to the civil service, monuments of art, museums, and scientific
establishments. Modern usage does not permit the use of barbarous weapons, as
bar-shot, poisoned weapons, explosive bullets, or balls so shaped as to make
death the result of a wound. So the assassination of commanders, poison-

There is a marked difference in the right of war, carried on by land and
at sea. The object of a maritime war is the destruction of the enemy's commerce
and navigation, in order to weaken and destroy the foundations of his naval
power. The capture or destruction of private property is essential to that end,
and it is allowed in maritime wars by the law and practice of nations. But
there are great limitations imposed upon the operations of war by land, though
depredations upon private property, and

ing of wells or of provisions are looked upon as odious crimes. In 1868,
a compact was made at St. Petersburg, between all the European powers,
absolutely forbidding the use of explosive balls; and by the Geneva Convention
of 1864, ambulances and hospitals when used for the care of the sick or
wounded, were to be acknowledged as neutral, and persons, including medical men
and chaplains, employed in connection therewith, were also to have the benefit
of such neutrality. So the enemy's soldiers, when taken prisoner, or disabled,
are not to be maimed or put to death, when the preservation of their lives is
consistent with safety and the enemy has not by cruelty justified retaliation.
Prisoners are not to be sold into captivity, and the employment of savages,
uncivilized Indians, and cannibals in war is also condemned. But the rules of
war justify stratagems by land or sea, disguise of uniform, the use of spies,
the ambush, mines, bombs, cheveaux de frieze, grape, and shell; also the false
flag, but not a false signal of distress, at least after a naval battle is
begun; the employment of privateers, if not forbidden by treaty; the wrecking
or cutting off of the enemy's resources by the devastation, not merely wanton,
of the adjacent territory, or the stopping of water supplies; or the
confiscation of any property belonging to the individual inhabitants of the
enemy's country and taken therein. See 3 Phillimore, Int. Law, (3d ed.) cc. 6,
7; Hosack's Law of Nations, 121; Maine's Int. Law, 136; Gallaudet's Manuel,
p.

Prisoners of war are no longer required to give information to their
captors respecting their own army or country, and are not to be punished for
giving false information; they are also permitted to retain their money and
valuables, to a reasonable amount, and their extra clothing; and persons forced
to serve as guides are not to be punished for so doing. Instructions for the U.
S. Armies (1863), § 3, cl. 72, 80, 94.

The influence of the United States in promoting international
arbitration is shown historically in 26 Am. Law Rev. 66, 85; 24 id. 897; 48
Alb. L. J. 291. As to disarmament by international agreement, see 19 Revue de
Droit Int. 472, 479; 26 id. 573. Upon the international rights of railroads,
owned by belligerents or by neutrals, in time of war, see 17 Revue de Droit
Int. 332; 19 id. 164; 20 id. 362, 383; 21 Journal du Droit Int. 435, 641. As to
the protection of marine telegraph cables, see 15 Revue de Droit Int. 17. By
the Postal Treaty of Aug. 30, 1890, between Great Britain and France, postal
packets are not liable to seizure or detention in case of war, until postal
communication is ordered discontinued by either nation, and then they may
return home.

despoiling and plundering the enemy's territory, are still too
prevalent, especially when the war is assisted by irregulars. Such conduct has
been condemned in all ages by the wise and virtuous, and it is usually severely
punished by those commanders of disciplined troops who have studied war as a
science, and are animated by a sense of duty or the love of fame. We may infer
the opinion of Xenophon on this subject (and he was a warrior as well as a
philosopher), when he states, in the Cyropasdia, (a) that Cyrus of Persia gave
orders to his army, when marching upon the enemy's borders, not to disturb the
cultivators of the soil; and there have been such ordinances in modern times,
for the protection of innocent and pacific pursuits. (b)1

(a) Lib. 5.

(b) 1 Emerigon, des Ass. 129, 130, 457, refers to ordinances of France
and Holland, in favor of protection to fishermen; and to the like effect was
the order of the British government in 1810, for abstaining from hostilities
against the inhabitants of the Faroe Islands and Iceland. So it is the practice
of all civilized nations to consider vessels employed only for the purpose of
discovery and science, as excluded from the operations of war. The American
Commissioners (John Adams, Benjamin Franklin, and Thomas Jefferson), in 1784,
submitted to the Prussian Minister a proposition to

ton Gaslight Co., 10 Int. Rev. Rec. 110, 2 Am. Law Times, 117, with
United States v. Keehler, 9 Wall. 83. But it may be doubted in view of
the practice of the United States and other nations in cases where expediency
has dictated the taking of private property on land, whether the immunity of
such property in general is so firmly established, that an argument can be
drawn from it in favor of extending the exemption to private property at sea.
The objections to the latter principle are forcibly stated by Professor J. N.
Pomeroy, in the North American Review, cxiv. 376, for April, 1872, and the
treaty between the United States and Prussia, mentioned in the note (b), the
course of the United States with regard to the abolition of privateering by the
Congress of Paris, post, 98, n. 1, and the adoption of the principle by
Prussia in the war with France in 1870, are discussed and explained. See also
Wheat. Dana's notes 158, 171, and the history in Wheat. Lawrence's note
192.

Vattel condemns {92} very strongly the spoliation of a country without
palpable necessity; and he speaks with a just indignation of the burning of the
Palatinate by Turenne, under the cruel instructions of Luvois, the war minister
of Louis XIV. (a) The general usage now is not to touch private property upon
land, without making compensation, unless in special cases, dictated by the
necessary operations of war, or when captured in places carried by storm, and
which repelled all the overtures for a capitulation. Contributions are
sometimes levied upon a conquered country, in lieu of confiscation of property,
and as some indemnity for the expenses of maintaining order and affording
protection. (b) If the conqueror goes beyond these limits wan-

improve the laws of war, by a mutual stipulation not to molest
non-combatants, as cultivators of the earth, fishermen, merchants and traders
in unarmed ships, and artists and mechanics inhabiting and working in open
towns. These restrictions on the rights of war were inserted in a treaty
between the United States and Prussia, in 1785. (See post, 98.) General
Brune stated to the Duke of York, in October, 1799, when an armistice in
Holland was negotiating, that if the latter should cause the dikes to be
destroyed, and the country to be inundated, when not useful to his own army, or
detrimental to the enemy's, it would be contrary to the laws of war, and must
draw upon him the reprobation of all Europe and of his own nation. Nay, even
the obstinate defence of a town, if it partake of the character of a mercantile
place, rather than a fortress of strength, has been alleged to be contrary to
the laws of war. (See the correspondence between Genera] Laudohn and the
Governor of Breslau, in 1760. Dodsley's Ann. Reg. 1760.) So, the destruction of
the forts and warlike stores of the besieged in the post of Almeida, by the
French commander, when he abandoned it with his garrison by night, in 1811, is
declared by General Sarazin, in his history of the Peninsular War, to have been
an act of wantonness which justly placed him without the pale of civilized
warfare. When a Russian army, under the command of Count Diebitsch, had
penetrated through the passes of the Balkan to the plains of Romelia, in the
summer of 1829, the Russian commander gave a bright example of the mitigated
rules of modern warfare, for he assured the Mussulmans that they should be
entirely safe in their persons and property, and in the exercise of their
religion; and that the Mussulman authorities in the cities, towns, and villages
might continue in the exercise of their civil administration for the protection
of person and property. The inhabitants were required to give up their arms, as
a deposit, to be restored on the return of peace, and in every other respect
they were to enjoy their property and pacific pursuits as formerly. This
protection and full security to the persons and property of the peaceable
inhabitants of conquered towns and provinces are according to the doctrine and
declared practice of modern civilized nations. (See Dodsley's Ann. Reg. 1772,
p. 37.

(a) Vattel, b. 3, c. 9, sec. 167.

(b) Vattel, b. 2, c. 8, sec. 147; c. 9, sec. 165; Scott's Life of
Napoleon, iii. 58. Contributions exacted from the inhabitants by the armies of
an invader, without payment, is contrary to the ordinary usages of modern
warfare, though the practice is not consistent. The campaigns of revolutionary
France, and of Napoleon, in modern Europe, were melancholy exceptions, of the
severest character. Upon the invasion of

tonly, or when it is not clearly indispensable to the just purposes of
war, and seizes private {93} property of pacific persons for the sake of gain,
and destroys private dwellings,

Mexico by the armies of the United States, in 1846, the American
Secretary of War (Marcy) instructed General Taylor (September 22, 1846) to
abstain from appropriating private property to the public uses, until purchased
at a fair price, though he said that was in some respects going far beyond the
common requirements of civilized warfare, and that an invading army had the
unquestionable right to draw its supplies from the enemy without paying for
them, and to require contributions for its support, and to make the enemy feel
the weight of the war. He further observed, that upon the liberal principles of
civilized warfare, either of three modes might be pursued in relation to
obtaining supplies from the enemy: first, to purchase them on such terms as the
inhabitants of the country might choose to exact; second, to pay a fair price
without regard to the enhanced value resulting from the presence of a foreign
army; and, third, to require them as contributions, without paying or engaging
to pay therefor; that the last mode was the ordinary one, and General Taylor
was instructed to adopt it, if in that way he was satisfied he could get
abundant supplies for his forces. The previous instructions in that campaign
had been to abstain from appropriating private property to the public use
without purchase, at a fair price; but the instructions had now, in the
progress of the campaign, risen to a severer character. The principle of
kindness and liberality towards the enemy seems to be of a flexible character,
and to be swayed by considerations of policy and circumstances. The President
of the United States (James K. Polk), in his letter to the Secretary of the
Treasury, of the 23d March, 1847, declared the right of the conqueror to levy
contributions upon the enemy, in their seaports, towns, or provinces, which may
be in his military possession by conquest, and to apply the same to defray the
expenses of the war. He further declared, that the conqueror possessed the
right to establish a temporary military government over such seaports, towns,
or provinces, and to prescribe the terms of commerce with such places; that he
might, in his discretion, exclude all trade, or impose terms upon it, 
such, for instance, as a prescribed rate of duties on tonnage and imports. The
President of the United States, therefore, with a view to impose a burden on
the enemy, and deprive him of the revenue to be derived from trade, and secure
it to the United States, ordered that all the ports and places in Mexico, in
the actual possession of the land and naval forces of the United States, by
conquest, should be opened, while the military occupation continued, to the
commerce of all neutral nations, as well as of the United States, in articles
not contraband of war, upon the payment of a prescribed tariff of duties and
tonnage, prepared under the instructions of the President, and by him adopted,
and to be enforced by the military and naval commanders. All these rights of
war undoubtedly belong to the conqueror or nation who holds foreign places and
countries by conquest; but the exercise of those rights and powers, except
those that temporarily arise from necessity, belong to that power in the
government to which the prerogative of war is constitutionally confided. The
President of the United States, in his official letter to the Secretary of the
Navy, of March 31, 1847, claimed and exercised, as being charged by the
Constitution with the prosecution of the war, this belligerent right to levy
military contributions upon the enemy, and to collect and apply the same
towards defraying the expenses of the war, and to open the Mexican ports for
that purpose, on a footing favorable to neutral commerce. The whole execution
of the commercial regulations was placed under the control of the military and
naval forces, and, with the policy of blockading some and opening other

or public edifices devoted to civil purposes only, or makes war upon
monuments of art and models of taste, he violates the modern usages of war, and
is sure to meet with indignant resentment, and to be held up to the general
scorn and detestation of the world. (a)

2. Law of Retaliation.  Cruelty to prisoners, and barbarous
destruction of private property, will provoke the enemy to severe retaliation
upon the innocent. Retaliation is said by Ruther-

Mexican ports, to compel the whole commerce for the supply of Mexico to
pass under the control of the American forces, subject to the contributions,
exactions, and duties to be imposed. (See President Folk's Letter of March 31,
1847, to the Secretary of the Navy, and his letter of March 23, 1847, to the
Secretary of the Treasury, and the letter of Mr. Walker, of the 30th March,
1847, to the President, containing a scale of duties to be collected, as a
military contribution, in the ports of Mexico, and with a recommendation that
the Mexican coastwise trade, and the interior trade, above ports of entry, be
confined to American vessels, and that in all other respects the ports of
Mexico in our possession be freely opened.) These fiscal and commercial
regulations, issued and enforced at the mere pleasure of a President, would
seem to press strongly upon the constitutional power of Congress to raise
and support armies, to lay and collect taxes, duties, and
imports, and to regulate commerce with foreign nations, and to .
declare war, and make rules for the government and regulation of the
land and naval forces, and concerning captures on land and water,
and to define offences against the law of nations. Though the
Constitution vests the executive power in the President, and declares him to be
commander-in-chief of the army and navy of the United States, these powers must
necessarily be subordinate to the legislative power in Congress. It would
appear to me to be the policy or true construction of this simple and general
grant of executive power to the President, not to suffer it to interfere with
those specific powers of Congress which are more safely deposited in the
legislative department, and that the powers thus assumed by the President do
not belong to him, but to Congress.

(a) Vattel, b. 3, c. 9, sec. 168. In the case of The Marquis de
Somerueles (Stewart's Vice-Adm. Rep. 482), the enlightened judge of the
vice-admiralty court at Halifax restored to the Academy of Arts in Philadelphia
a case of Italian paintings and prints, captured by a British vessel in the war
of 1812, on their passage to the United States; and he did it "in conformity to
the law of nations, as practised by all civilized countries," and because "the
arts and sciences are admitted to form an exception to the severe rights of
warfare." Works of art and taste, as in painting and sculpture, have, by the
modern law of nations, been held sacred in war, and not deemed lawful spoils of
conquest. When Frederick II. of Prussia took possession of Dresden as
conqueror, in 1756, he respected the valuable picture gallery, cabinets, and
museums of that capita], as not falling within the rights of a conqueror. But
Bonaparte, in 1796, compelled the Italian states and princes, including the
Pope, to surrender their choicest pictures and works of art, to be transported
to Paris. The chefs d'uvre of art of the Dutch and Flemish
schools, and in Prussia, were acquired by France in the same violent way. This
proceeding is severely condemned by distinguished historians, as an abuse of
the power of conquest, and a species of military contribution contrary to the
usages of modern civilized warfare. Alison's History of Europe, iii. 42; Sir
Walter Scott's Life of Napoleon, iii. 58-68.

forth (b) not to be a justifiable cause for putting innocent prisoners
or hostages to death; for no individual is chargeable, by the law of nations,
with the guilt of a personal crime, merely because the community of which he is
a member is guilty. He is only responsible as a member of the state, in his
property, for reparation in damages for the acts of others; and it is on this
principle that, by the law of nations, private property may be taken and
appropriated in war. Retaliation, to be just, ought to be confined to the
guilty individuals, who may have committed some enormous violation of public
law. On this subject of retaliation Professor Martens is not so strict.
(a)1 While he admits that the life of an innocent man cannot be
taken, unless in extraordinary cases, he declares that cases will sometimes
occur, when the established usages of war are violated, and there are no other
means, except the influence of retaliation, of restraining the enemy from
further excesses. Vattel speaks of retaliation as {94} a sad extremity, and it
is frequently threatened without being put in execution, and probably without
the intention to do it, and in hopes that fear will operate to restrain the
enemy. Instances of resolutions to retaliate on innocent prisoners of war
occurred in this country during the Revolutionary war, as well as during the
war of 1812; but there was no instance in which retaliation, beyond the measure
of severe confinement, took place in respect to prisoners of war.
(a)

Although a state of war puts all the subjects of the one nation in a
state of hostility with those of the other, yet, by the customary law of
Europe, every individual is not allowed to fall upon the enemy.1 If
subjects confine themselves to simple defence, they are to be considered as
acting under the presumed order of the state, and are entitled to be treated by
the adversary as lawful enemies; and the captures which they make in such a
case

(b) Inst. b. 2, c. 9.

(c) Summary of the Law of Nations, b. 8, c. 1, sec. 3, note.

(a) Journals of Congress under the Confederation, ii. 245; vii. 9
and 147; viii. 10; British Orders in Canada, of October 27 and December 12,
1813, and President's Message to Congress of December 7, 1813, and of October
28, 1814.

1 But it is said that the above view does not appear in the
last edition of Martens's work, and that the whole subject is discussed in a
different spirit. Abdy's

are allowed to be lawful prize. But they cannot engage in offensive
hostilities, without the express permission of their sovereign; and if they
have not a regular commission, as evidence of that consent, they run the hazard
of being treated by the enemy as lawless banditti, not entitled to the
protection of the mitigated rules of modern warfare. (b)

It was the received opinion in ancient Rome, in the times of Cato and
Cicero. (c) that one who was not regularly enrolled as a soldier could not
lawfully kill an enemy. But the law of Solon, by which individuals were
permitted to form associations for plunder, was afterwards introduced into the
Roman law, and has been transmitted to us as {95} part of their system. (a)During the lawless confusion of the feudal ages, the right of making
reprisals was claimed and exercised without a public commission. It was not
until the fifteenth century that commissions were made necessary, and were
issued to private subjects in time of war, and that subjects were forbidden to
fit out vessels to cruise against enemies without license. There were
ordinances in Germany, Prance, Spain, and England to that effect. (b) It is now
the practice of maritime states to make use of the voluntary aid of individuals
against their enemies as auxiliary to the public force; and Bynkershoek says
that the Dutch formerly employed no vessels of war but such as were owned by
private persons, and to whom the government allowed a proportion of the
captured property, as well as indemnity from the public treasury. Vessels are
now fitted out and equipped by private adventurers, at their own expense, to
cruise against the commerce of the enemy. They are duly commissioned, and it is
said not to be lawful to cruise without a regular commission. (c) Sir Matthew
Hale held it to be depredation in a subject to attack the enemy's vessels,
except in his own defence, without a commission. (d) The subject has been
repeatedly

discussed in the Supreme Court of the United States, (e) and the
doctrine of the law of nations is considered to be that private citizens cannot
acquire a. title to hostile property, unless seized under a commission, but
they may still lawfully seize hostile property in their own defence. If they
depredate upon the enemy without {96} a commission, they act upon their peril,
and are liable to be punished by their own sovereign; but the enemy is not
warranted to consider them as criminals, and, as respects the enemy, they
violate no rights by capture.

Such hostilities, without a commission, are, however, contrary to usage,
and exceedingly irregular and dangerous, and they would probably expose the
party to the unchecked severity of the enemy; but they are not acts of piracy
unless committed in time of peace. Vattel, indeed, says, (a) that private ships
of war, without a regular commission, are not entitled to be treated like
captures made in a formal war. The observation is rather loose, and the weight
of authority undoubtedly is, that noncommissioned vessels of a belligerent
nation may at all times capture hostile ships, without being deemed, by the law
of nations, pirates.1 They are lawful combatants, but they have no
interest in the prizes they may take, and the property will remain subject to
condemnation in favor of the government of the captor, as droits of the
admiralty. It is said, however, that in the United States the property is
not strictly and technically condemned upon that principle, but jurereipublicæ; and it is the settled law of the United States that
all captures made by non-commissioned captors are made for the government.
(b)

1 This passage has been criticised as inconsistent with p.
94, and it has been thought that although captures at sea by persons without
regular commissions are lawful with respect to the government of the captors,
such acts might be punished as piracy by the opposing belligerents. Halleck, c.
16, § 10. But see Abdy's

Kent, 249 et seq. It is competent for any person to take
possession of enemy's property coming within the hostile jurisdiction, unless
it is protected by license, and to assist the sovereign to proceed against it
to adjudication. The Johanna Emilie, Spinks, Prize C. 12, 14.

3. Privateering.  In order to encourage privateering, it is usual
to allow the owners of private armed vessels to appropriate to themselves the
property, or a large portion of the property, they may capture; and to afford
them and the crews other facilities {97} and rewards for honorable and
successful efforts. This depends upon the municipal regulations of each
particular power; and, as a necessary precaution against abuse, the owners of
privateers are required, by the ordinances of the commercial states, to give
adequate security that they will conduct the cruise according to the laws and
usages of war and the instructions of the government, and that they will regard
the rights of neutrals, and bring their prizes in for adjudication. These
checks are essential to the character and safety of maritime nations. (a)Privateering, under all the restrictions which have been adopted, is very
liable to abuse. The object is, not fame or chivalric warfare, but plunder and
profit. The discipline of the crews is not apt to be of the highest order, and
privateers are often guilty of enormous excesses, and become the scourge of
neutral commerce. (b) They are sometimes manned and officered by foreigners
having no permanent connection with the country, or interest in its cause. This
was a complaint made by the United States, in 1819, in relation to
irregularities and acts of atrocity committed by private armed vessels sailing
under the flag of Buenos Ayres. (c) Under the best regulations, the business
tends strongly to blunt the sense of private right, and to nourish a lawless
and fierce spirit of rapacity. Efforts have

397; The Brig Joseph, 1 Gallison, 545; The Dos Hermanos, 10 Wheaton,
306; [The Siren, 13 Wall. 389. See Hall, Int. Law, pt. 3, c. 7, § 183.]
The American Commissioners at the court of France, in 1778 (Benjamin Franklin,
Arthur Lee, and John Adams), in a letter to the French government, laid down
accurately and with precision the law in the text as to capture of enemy's
property without a commission. Diplomatic Correspondence, by J. Sparks, i.
443.

(b) Reports of the United States Secretary of State, March 2, 1794, and
June 21, 1797.

(c) Mr. Adams's letter of 1st January, 1819, to Mr. De Forrest, and his
official report of 28th January, 1819.

been made, from time to time, to abolish {98} the practice. In the
treaty of amity and commerce between Prussia and the United States, in 1785, it
was stipulated that, in case of war, neither party should grant commissions to
any private armed vessels to attack the commerce of the other. But the spirit
and policy of maritime warfare will not permit such generous provisions to
prevail. That provision was not renewed with the renewal of the treaty. A
similar attempt to put an end to the practice was made in the agreement between
Sweden and Holland, in 1675, but the agreement was not performed. The French
legislature, soon after the breaking out of the war with Austria, in 1792,
passed a decree for the total suppression of privateering; but that was a
transitory act, and it was soon swept away in the tempest of the revolution.
The efforts to stop the practice have been very feeble and fruitless,
notwithstanding that enlightened and enlarged considerations of national policy
have shown it to be for the general benefit of mankind to surrender the
licentious practice, and to obstruct as little as possible the freedom and
security of commercial intercourse among the nations. (a)1

(a) 1 Emerigon, des Ass. 129-132, 457; Mably's Droit Public, c. 12, sec.
1; Edinburgh. Review, viii. 13-15; North American Review, N. S. ii. 166. During
the war between the United States and Great Britain, the legislature of New
York went so far as to pass an act to encourage privateering associations,
by authorizing any five or more persons, who should be desirous to form a
company for the purpose of annoying the enemy and their commerce, by means of
private armed vessels, to sign and file a certificate, stating the name of the
company and its stock, &c., and that they and their successors should
thereupon be a body politic and corporate, with the ordinary corporate
powers. Laws, N. Y. 38 Sess. c. 12, Oct. 21, 1814.

1 At the Congress of Paris of April 16, 1856, a declaration
was signed by the representatives of Great Britain, Austria, France, Prussia,
Russia. Sardinia, and Turkey, of which the first principle was that
"Privateering is and remains abol-

(x) The provision of the U. S. Constitution (Art. I, § 8)
empowering Congress to grant letters of marque and reprisal, has been thought
to deprive Congress of power to abrogate this constitutional prerogative by
permanently joining in the Treaty of Paris or other like treaty. See 28 Am. L.
Rev. 615; 24 id. 902; 19 Law Mag.

ished."(x) The United States refused to accede to this unless it should
be amended by adding that "the private property of the subjects or citizens of
a belligerent on the high seas shall be exempted from seizure by public armed
vessels of the

It has been a question, whether the owners and officers of private armed
vessels were liable in damages for illegal conduct beyond the amount of the
security given. Bynkershoek (b) has discussed this point quite at large, and he
concludes that the owner, master, and sureties are jointly and severally
liable, in solido, for the damages incurred; and that the master and
owners are liable to the whole extent of the injury, though it may exceed the
value of the privateer and her equipment, though the sureties are bound only to
the amount of the sums for which they become bound. This rule is liable to the
modifications of municipal regulations; {99} and though the French law of prize
was formerly the same as the rule laid down by Bynkershoek, yet the new
commercial code of France (a) exempts the owners of private armed
vessels in time of war from responsibility for trespasses at sea, beyond the
amount of the security they may have given, unless they were accomplices in the
tort. The English statute of 7 Geo. II. c. 15, is to the same effect, in
respect to embezzlements in the merchants' service. It limits the
responsibility to the amount of the vessel and freight, but it does not apply
to privateers in time of war; and where there is no positive local law on the
subject (and there is none with us), the general principle is, that the
liability is commensurate with the injury. This was the rule as declared by the
Supreme Court of the United States, in Del Col v. Arnold; (b)and though that case has since been shaken as to other points, (c) it has
not been disturbed as to the point before us. We may, therefore, consider it to
be a settled rule of law and equity, that the measure or [of] damages is the
value of the property unlawfully injured or destroyed, and that each individual
owner is responsible for the entire damages, and not ratably pro tanto.
(d)

other belligerent, except it be contraband;" on the ground that this was
necessary to prevent a nation which should maintain a powerful navy from having
an undue advantage over one whose marine was wholly commercial. Ann. Reg. 1856,
p. 221; Wheat. Lawrence's note

192; ante, 91, n. 1. See also the act of March 3, 1863, c. 85; 12
U. S. St. at L. 758; although the authority thereby given to the President for
three years to commission privateers was not exercised during the
rebellion.

Vattel admits (e) that an individual may, with a safe conscience, serve
his country by fitting out privateers; but he holds it to be inexcusable and
base to take a commission from a foreign prince to prey upon the subjects of a
state in amity with his native country. The laws of the United {100} States
have made ample provision on this subject, and they may be considered as in
affirmance of the law of nations, and as prescribing specific punishment for
acts which were before unlawful. (a) An act of Congress prohibits citizens to
accept, within the jurisdiction of the United States, a commission, or for any
person not transiently within the United States, to consent to be retained or
enlisted, to serve a foreign state in war, against a government in amity with
us. It likewise prohibits American citizens from being concerned, without the
limits of the United States, in fitting out, or otherwise assisting, any
private vessel of war, to cruise against the subjects of friendly powers. (b)
Similar prohibitions are contained in the laws of other countries: (c)and the French Ordinance of the Marine of 1681 treated such acts as
piratical. The better opinion is, that a cruiser, furnished with commissions
from two different powers, is liable to be treated as a pirate; for, though the
two powers may be allies, yet one of them may be in amity with a state with
whom the other is at war. (d)1 In the various treaties

loss of a vessel, for piratical acts committed by the officers
and crew of the privateer. They are only liable, by the maritime law, for the
conduct of the officers and crew while in the execution of the business of
the cruise. Dias v. Privateer Revenge, 3 Wash. 262. The New York scheme
(see supra, 98, n. a) of making privateering companies actual
corporations or bodies politic would seem to exempt the members from the
personal responsibility ordinarily incident to the owners of privateers. (e)B 3, c. 15, sec. 229.

(c) See the Austrian Ordinance of Neutrality of August 7, 1803, art. 2,
3. By the law of Plymouth Colony, in 1682, it was declared to be felony to
commit hostilities on the high seas, under the flag of any foreign power, upon
the subjects of another foreign power in amity with England. Bailie's
Historical Memoir, ii. pt. 4, 35. The same acts were declared to be felony by a
law of the colony of New York, in 1699. Smith's edition of the laws of the
colony, i. 25.

1 1 Phillimore, § ccclviii., "The better opinion seems
to be that [sailing under two or more commissions granted by allied

powers against a common enemy] is irregular and
inexpedient, but does not carry with it the substance or name of Piracy."

between the powers of Europe in the two last centuries, and in the
several treaties between the United States and France, Holland, Sweden,
Prussia, Great Britain, Spain, Colombia, Chili, &c., it is declared that no
subject or citizen of either nation shall accept a commission or letter of
marque, to assist an enemy in hostilities against the other, under pain of
being treated as a pirate.

4. Prizes.  The right to all captures vests primarily in the
sovereign, and no individual can have any interest in a prize, whether made by
a public or private armed vessel, but what he receives {101} under the grant of
the state.1 This is a general principle of public jurisprudence,
bello parta cedunt reipublicæ, and the distribution of the
proceeds of prizes depends upon the regulations of each state; and unless the
local laws have otherwise provided, the prizes vest in the sovereign. (a)But the general practice, under the laws and ordinances of the belligerent
governments, is, to distribute the proceeds of captured property, when duly
passed upon and condemned as prize (and whether captured by public or private
commissioned vessels), among the captors, as a reward for bravery and a
stimulus to exertion. (b)

When a prize is taken at sea, it must be brought, with due care, into
some convenient port, for adjudication by a competent court; though, strictly
speaking, as between the belligerent parties, the title passes, and is vested
when the capture is complete; and that was formerly held to be complete and
perfect when the battle was over, and the spes recuperandi was gone.
Voet, in his Commentaries upon the Pandects, (c) and the authors he
refers to, maintain with great strength, as Lord Mansfield observes in

113. For a discussion as to who are entitled to share as joint captors
at sea and on land, see The Cherokee, 2 Sprague, 235; The Selma, 1 Lowell, 30;
Banda & Kirwee Booty, supra.

Goss v. Withers, (d) that occupation, of itself,
transferred the title to the captor, per solam occupationem dominium
prædæ hostibus acquiri. The question never arises hut between
the original owner and a neutral purchasing from the captor, and between the
original owner and. a recaptor. If a captured ship escapes from the captor, or
is retaken, or if the owner ransoms her, his property is thereby revested. But
if neither of these events happens, the question as to the change of title is
open to dispute; and many arbitrary lines have been drawn, partly from policy,
to prevent too easy dispositions of the property to neutrals, {102} and partly
from equity, to extend the jus postliminii in favor of the owner.
Grotius (a) and many other writers, and some marine ordinances, as those of
Louis XIV. and of Congress during the American war, (b) made twenty-four hours'
quiet possession by the enemy the test of title by capture. Bynkershoek (c)
says that such a rule is repugnant to the laws and customs of Holland; and he
insists that a firm possession, at any time, vests the property in the captor,
and that ships and goods brought infra præsidia do most clearly
change the property. But by the modern usage of nations, neither the
twenty-four hours' possession, nor the bringing the prize infra
præsidia, is sufficient to change the property in the case of a
maritime capture. A judicial inquiry must pass upon the case, and the present
enlightened practice of commercial nations has subjected all such captures to
the scrutiny of judicial tribunals, as the only sure way to furnish due proof
that the seizure was lawful. The property is not changed in favor of neutral
vendee or recaptor, so as to bar the original owner, until a regular sentence
of condemnation has been pronounced by some court of competent jurisdiction,
belonging to the sovereign of the captor;1 and the purchaser must be
able to show documentary evidence of that

1 The Peterhoff, Blatchf. Pr. 620. A captor does not forfeit
his rights as such, and render himself liable to he treated as a trespasser, by
delay in sending home his prize for adjudication, if he thinks it necessary,
and uses discretion and good

fact, to support his title. Until the capture becomes invested with the
character of prize by a sentence of condemnation, the right of property is in
abeyance, or in a state of legal sequestration. It cannot be alienated or
disposed of, but the possession of it by the government of the captor is a
trust for the benefit of those who may be ultimately entitled. (x) This
salutary rule, and one so necessary to check irregular conduct and individual
outrage, has been long established in the English admiralty, (d) {103} and it
is now everywhere recognized as the law and practice of nations. (a)

The condemnation must be pronounced by a prize court of the government
of the captor sitting either in the country of the captor or of his ally. The
prize court of an ally cannot condemn. Prize or no prize is a question
belonging exclusively to the courts of the country of the captor. The reason of
this rule is said to be, (b) that the sovereign of the captors has a right to
inspect their behavior, for he is answerable to other states for the acts of
the captor. The prize court of the captor may sit in the territory

(a) The Flad Oyen, 1 C. Rob. 135; The Henrick and Maria, 4 C. Rob. 45;
Vattel, b. 3, c. 14, sec. 216; Heineccii Opera, ed. Geneva, 1744, ii. 310, 360;
5 C. Rob. 249; Doug. 591; 8 Cranch, 226; 4 Wheaton, 298; 6 Taunt. 25; 2 Dallas,
1, 2, 4. Every court has the right to inquire into the competency of the
jurisdiction of a foreign court to condemn captured property, and if it has
none, the sentence is null. The consul of a belligerent in a neutral country
has no power to condemn prizes. See cases, Abbott on Shipping, 5th Amer. ed.,
Boston, 1846, 30-32. But a prize carried into the country of an ally may be
condemned there, and even by a consul belonging to the country of the captors;
ib. 33.

(b) Rutherforth's Institutes, b. 2, c. 9.

(x) If there is probable cause for the seizure of a vessel which
is not good prize, the captors may be awarded costs, though the vessel is not
condemned. Hooper's Case, 22 Ct. Cl. 408. A captor, who unreasonably delays
bringing suit for condemnation of a prize, is liable for demurrage if its
restoration is decreed. The Neustra Senora De Regla, 108 U. S. 92. A
belligerent who seizes a neutral vessel merely on suspicion is only excused for
her loss when caused by unavoidable casualty. The Ship Tom, 29 Ct. Cl. 68.
Captors

are not liable for the loss, without their fault, of a vessel which they
seize and hold as contraband of war. The Caroline Wilmans, 27 Ct. Cl. 215. As
to the English Prize Courts under recent legislation, see 4 Law Quart. Rev.
107. The captured vessel has the burden of proof to clear herself of suspicion.
Hooper'a Case, 22 Ct. Cl. 408. A torpedo launch is a "ship" within the acts of
Congress as to the distribution of prize money. United States v.
Steever, 113 U. S. 747.

of the ally, but it is not lawful for such a court to act in a neutral
territory. Neutral ports are not. intended to be auxiliary to the operations of
the power at war; and the law of nations has clearly ordained that a prize
court of a belligerent captor cannot exercise jurisdiction in a neutral
country. This prohibition rests not merely on the unfitness and danger of
making neutral ports the theatre of hostile proceedings, but it stands on the
ground of the usage of nations. (a)

It was for some time supposed that a prize court, though sitting in the
country of its own sovereign, or of his ally, had no jurisdiction over prizes
lying in a neutral port, because the court wanted that possession which was
deemed essential to the exercise of a jurisdiction in a proceeding in rem.
The principle was admitted to be correct by Sir William Scott, in the case
of the Henrick and Maria, (d) and he acted {104} upon it in a prior
case. (a) But he considered that the English admiralty had gone too far, in
supporting condemnations in England of prizes abroad in a neutral port, to
permit him to recall the vicious practice of the court to the acknowledged
principle; and the English rule is now definitively settled agreeably to the
old usage and the practice of other nations. The Supreme Court of the United
States has followed the English rule, and it has held valid the condemnations,
by a belligerent court, of prizes carried into a neutral port, and remaining
there. This was deemed the most convenient practice for neutrals, as well as
for the parties at war; and though the prize was in fact within a neutral
jurisdiction, it was still to be deemed under the control, or sub potestate,
of the captor. (b)1

5. Ransom Bills.  Sometimes circumstances will not permit property
captured at sea to be sent into port; and the captor, in such cases, may either
destroy it, or permit the original owner to ransom it. It was formerly the
general custom to redeem property from the hands of the enemy by ransom; and
the contract is undoubtedly valid, when municipal regulations do not intervene.
It is now but little known in the commercial law of England, for several
statutes in the reign of George III. absolutely prohibited to British subjects
the privilege of ransom of property captured at sea, unless in a case of
extreme necessity, to be judged of by the court of admiralty. (c) A ransom
bill, when not locally prohibited, is a war contract, protected by good faith
and the law of nations; and notwithstanding that the contract is considered in
England as tending to relax the energy of war, and {105} deprive cruisers of
the chance of recapture, it is, in many views, highly reasonable and humane.
Other maritime nations regard ransoms as binding, and to be classed among the
few legitimate commercia belli. They have never been prohibited in this
country; and the act of Congress of August 2, 1813, interdicting the use of
British licenses or passes, did not apply to the contract of ransom. (a)

The effect of a ransom is equivalent to a safe-conduct granted by the
authority of the state to which the captor belongs, and it binds the commanders
of other cruisers to respect the safe-conduct thus given; and under the implied
obligation of the treaty of alliance, it binds equally the cruisers of the
allies of the captor's country. (b) From the very nature of the connection
between allies, their compacts with the common enemy must bind each other, when
they tend to accomplish the objects of the alliance. If they did not, the ally
would reap all the fruits of the compact, without being subject to the terms
and conditions of it; and the enemy with whom the agreement was made would be
exposed, in regard to the ally, to all the disadvantages of it,

public of Colombia, in 1825, art. 21, and of Chili, in 1832, art. 21, it
was agreed that the established courts for prize causes in the country to which
the prize may be conducted should alone take cognizance of them. (c) 1 Chitty,
Comm. Law, 428.

without participating in the stipulated benefits. Such an inequality of
obligation is contrary to every principle of reason and justice. (c)

The safe-conduct implied in a ransom bill requires that the vessel
should be found within the course prescribed, and within the time limited by
the contract, unless forced out of her course by stress of weather or
unavoidable necessity. (d) If the vessel ransomed perishes by a peril of the
sea, before arrival in port, the ransom is, nevertheless, due, for the captor
has not insured the prize against the perils {106} of the sea, but only against
recapture by cruisers of his own nation, or of the allies of his country. If
there should be a stipulation in the ransom contract, that the ransom should
not be due if the vessel was lost by sea perils, the provision ought to be
limited to total losses by shipwreck, and not to mere stranding, which might
lead to frauds, in order to save the cargo at the expense of the ship. (a)
(x)

If the vessel should be recaptured, out of the route prescribed by the
contract for her return, or after the time allowed for her return, and be
adjudged lawful prize, it has been made a question whether the debtors of the
ransom are discharged from their contract. Valin (b) says, that, according to
the constant practice, the debtors are discharged in such case, and the price
of the ransom is deducted from the proceeds of the prize, and given to the
first captor, and the residue goes to the second taker. So, if the captor
himself should afterwards be taken by an enemy's cruiser, together with his
ransom bill, the ransom becomes part of the lawful conquest of the enemy, and
the debtors of the ransom are, consequently, discharged from the contract under
the ransom bill. (c)

In the case of Ricord v. Bettenham, (d) an English vessel
was captured by a French privateer, in the war of 1756, and ransomed

(x) Generally there is no implied insurance in a ransom bill
against loss by the

perils of the sea. 2 Halleck's Int. Law (3d ed.), 331.

and a hostage given as a security for the payment of the ransom bill.
The hostage died while in possession of the French, and it was made a question
in the K. B., in a suit brought upon the ransom bill after the peace, whether
the death of the hostage discharged the contract, and whether the alien could
sue on the ransom bill in the English courts. It was shown that such a contract
was valid among the other nations of Europe, and that the owner of the bill was
entitled to sue upon it, and that it was not discharged by the death of the
hostage, who was taken as a mere collateral {107} security, and the plaintiff
was, accordingly, allowed to recover. But it has been since decided, and it is
now understood to be the law, that during war, and while the character of alien
enemy continues, no suit will lie in the British courts by the enemy, in proper
person, on a ransom bill, notwithstanding it is a contract arising jure
belli. (a) The remedy to enforce payment of the ransom bill for the benefit
of the enemy captor is by an action by the imprisoned hostage, in the courts of
his own country, for the recovery of his freedom. This severe technical
objection would seem to be peculiar to the British courts, for it was shown, in
the case of Ricord v. Bettenham, to be the practice in France and
Holland to sustain such actions by the owner of the ransomed contract. Lord
Mansfield considered the contract as worthy to be sustained by sound morality
and good policy, and as governed by the law of nations and the eternal rules of
justice. (b) The practice in France (a) when a French vessel has been
ransomed, and a hostage given to the enemy, is for the officers of the
admiralty to seize the vessel and her cargo, on her return to port, in order to
compel the owners to pay the ransom debt, and relieve the hostage; and this is
a course dictated by a prompt and liberal sense of justice. The recapture of
the ransom bill, according to Valin, (d) puts an end to the claim of the
captor. He may be deprived of the entire benefit of his prize, as well as of
the ransom bill, either by recapture or rescue, and the questions arising on
them lead to the consideration of postliminy and salvage. Upon recapture from
pirates, the property is to be restored to the owner, on the

(a) Anthon v. Fisher, Doug. 649, note; The Hoop, 1 C. Rob.
196.

(b) Cornu v. Blackburne, Doug. 641.

(c) Pothier, Traité de Propriété, No. 144.

(d) ii. liv. 3, tit. 9, art. 19.

allowance of a reasonable compensation to the retaker in the nature of
salvage; for it {108} is a principle of the law of nations that a capture by
pirates does not, like a capture by an enemy in solemn war, change the title,
or divest the original owner of his right to the property, and it does not
require the doctrine of postliminy to restore it. (a)1 In France,
property may be reclaimed by the owner within a year and a day; (b) but in some
other countries (and Grotius mentions Spain and Venice) the rule formerly was,
that the whole property recaptured from pirates went to the retaker, and this
rule was founded on the consideration of the desperate nature of the
recovery.

6. Right of Postliminium.  The jus postliminii was a
fiction of the Roman law, by which persons or things taken by the enemy were
restored to their former state upon coming again under the power of the nation
to which they formerly belonged. Postliminium fingit eum qui captus est in
civitate semper fuisse. (c) It is a right recognized by the law of nations, and
contributes essentially to mitigate the calamities of war. When, therefore,
property taken by the enemy is either recaptured or rescued from him, by the
fellow-subjects or allies of the original owner, it does not become the
property of the recaptor or rescuer, as if it had been a new prize, but it is
restored to the original owner, by right of postliminy, upon certain terms.
Movables are not entitled, by the strict rules of the laws of nations, to the
full benefit of postliminy, unless retaken from the enemy promptly after the
capture, for then the original owner neither finds a difficulty in recognizing
his effects, nor is presumed to have relinquished them. Real property is easily
identified, and therefore more completely within the right of postliminy; and
the reason for a stricter limitation of it in respect to personal property
arises from its transitory nature, and the difficulty of identifying it, and
the consequent presumption that the original owner had

1 A similar principle was applied where a vessel was
recaptured which was alleged to have been condemned and sold by a Confederate
prize court.

The proceedings of such a court are of no validity in the courts of the
United States. The Lilla, 2 Sprague, 177; S. C. 2 Cliff. 169; cf. ante,
91, n. 1.

abandoned the hope of recovery. (d) 109} This right does not take effect
in neutral countries, because the neutral nation is bound to consider the war
on each side as equally just, so far as relates to its effects, and to look
upon every acquisition made by either party as a lawful acquisition; with the
exception of cases where the capture itself is an infringement of the
jurisdiction or rights of the neutral power. (a) If one party was allowed, in a
neutral territory, to enjoy the right of claiming goods taken by the other, it
would be a departure from the duty of neutrality. The right of postliminy takes
place, therefore, only within the territories of the nation of the captors, or
of its ally; (b) and if a prize be brought into a neutral port by the captors,
it does not return to the former owner by the law of postliminy, because
neutrals are bound to take notice of the military right which possession gives,
and which is the only evidence of right acquired by military force, as
contradistinguished from civil rights and titles. They are bound to take the
fact for the law. Strictly speaking, there is no such thing as a marine tort
between belligerents. All captures are to be deemed lawful, and they have never
been held within the cognizance of the prize tribunals of neutral nations. (c)
With respect to persons, the right of postliminy takes place even in a neutral
country; so that if a captor brings his prisoners into a neutral port, he may,
perhaps, confine them on board his ship, as being, by fiction of law, part of
the territory of his sovereign, but he has no control over them on shore.
(d)

{110} In respect to real property, the acquisition by the conqueror is
not fully consummated until confirmed by the treaty of peace, or by the entire
submission or destruction of the state to which it belonged. (a) If it be
recovered by the original

(d) Vattel, b. 3, c. 7, sec. 132; Bynk. by Duponceau, 116, 117,
notes; Austrian Ord. of Neutrality, Aug. 7, 1803, art. 19. By one of the
provisions of a commercial treaty between Carthage and Rome, in the earliest
period of the Roman republic, soon after the expulsion of Tarquin, it was
stipulated, that if either party should bring into the ports of the other
prisoners taken from an ally, the prisoners might be reclaimed and set free.
Polybius, b. 3, c. 3.

(a) Puff. Droit de la Nature par Barbeyrac, liv. 8, c. 6, sec.
20.

sovereign, it returns to the former proprietor, notwithstanding it may,
in the mean time, have been transferred by purchase. The purchaser is
understood to have taken the property at the hazard of a recovery or reconquest
before the end of the war. But if the real property, as a town or portion of
the territory, for instance, be ceded to the conqueror by the treaty of peace,
the right of postliminy is gone for ever, and a previous alienation by the
conqueror would be valid. (b)

In a land war, movable property, after it has been in complete
possession of the enemy for twenty-four hours (and which goes by the name of
booty and not prize), becomes absolutely his, without any right of postliminy
in favor of the original owner; and much more ought this species of property to
be protected from the operation of the rule of postliminy, when it has not only
passed into the complete possession of the enemy, but been bona fide
transferred to a neutral. By the ancient and strict doctrine of the law of
nations, captures at sea fell under the same rule as other movable property
taken on land; and goods so taken were not recoverable by the original owner
from the rescuer or retaker. But the municipal regulations of most states have
softened the rigor of the law of nations on this point by an equitable
extension of the right of postliminy, as against a recaption by their own
subjects. The ordinances of several of the continental powers confined the
right of restoration, on recaption, to cases where the property {111} had not
been in possession of the enemy above twenty-four hours. This was the rule of
the French ordinance of 1681; (a) but now the right is everywhere understood to
continue until sentence of condemnation, and no longer.

It is also a rule on this subject, that if a treaty of peace makes no
particular provisions relative to captured property, it remains in the same
condition in which the treaty finds it, and it is tacitly conceded to the
possessor. The right of postliminy no longer exists, after the conclusion of
the peace. It is a right which belongs exclusively to a state of war, (b) and
therefore a transfer to a neutral, before the peace, even without a judicial
sentence of condemnation, is valid, if there has been no recovery or recaption
before the peace. The intervention of peace cures

all defects of title, and vests a lawful possession in the neutral,
equally as the title of the enemy captor himself is quieted by the intervention
of peace. (c) The title, in the hands of such a neutral, could not be defeated
in favor of the original owner, even by his subsequently becoming an enemy. It
would only be liable, with his other property, to be seized as prize of war.
(d)

Every power is obliged to conform to these rules of the law of nations
relative to postliminy, where the interests of neutrals are concerned. But in
cases arising between its own subjects, or between them and those of her
allies, the principle may undergo such modifications as policy dictates. Thus,
by several English statutes, the maritime rights of postliminy, as among
English subjects, subsists to the end of the war; and, therefore, ships or
goods captured at sea by an enemy, and retaken at any period during the war,
and whether before or after sentence of condemnation, are to be restored to the
original proprietor, on securing to the recaptors certain rates of salvage, as
a compensation or reward {112} for the service they have performed. (a) The
maritime law of England gives the benefit of this liberal rule of restitution,
with respect to the recaptured property of her own subjects, to her allies,
unless it appears that they act on a less liberal principle, and then it treats
them according to their own measure of justice. (b) Great Britain seems to have
no fixed rule as to the quantum of salvage on a foreign vessel in cases of
recapture, and the rate of salvage in other nations of Europe is different, as
allowed by different nations. (c) The allotment of salvage on recapture or
rescue is a question not of municipal law merely, except as to the particular
rates of it. It is a question of the jus gentium, when the subjects of
allies or neutral states claim the benefit of the recaption. The restitution is
a matter not of strict right after the property has been vested in the enemy,
but one of favor and relaxation; and the belligerent recaptor has a right to
annex a reasonable condition to his liberality. (d) Neu-

tral property, retaken from the enemy, is usually restored, without the
payment of any salvage, unless, from the nature of the case, or the usages of
the enemy, there is a probability that the property would have been condemned,
if carried into the enemy's ports, and in that case a reasonable salvage ought
to be allowed, for a benefit has been conferred. (e)

The United States, by the act of Congress of 3d March, 1800, directed
restoration of captured property, at sea, to the foreign and friendly owner, on
the payment of reasonable salvage; but the act was not to apply when the
property had been condemned as prize by a competent court, before recapture;
nor when the foreign government would not restore the goods or vessels of the
citizens of the United States, under the like circumstances. The statute
continued {113} the jus postliminii, until the property was devested by
a sentence of condemnation, and no longer;1 and this was the rule
adopted in the English courts, before the extension of the right of postliminy,
by statutes, in the reigns of George II. and George III. (a)